UP Draft Population Bill: A Potential and Momentous Blunder
This article titled ‘UP Draft Population Bill: A Potential and Momentous Blunder’ is written by Mohammad Sumamah and discusses the shortcomings of the Bill and the role of government intervention in population control. I. Introduction For a moment if we think from the perspective of an ordinary human, the idea of population control seems to be more convincing… Read More »
This article titled ‘UP Draft Population Bill: A Potential and Momentous Blunder’ is written by Mohammad Sumamah and discusses the shortcomings of the Bill and the role of government intervention in population control.
For a moment if we think from the perspective of an ordinary human, the idea of population control seems to be more convincing than ever before because of the perception that overpopulation would lead to shortages of food, freshwater, employment opportunities, and other resources.
There are many people now who are convinced with the idea that overpopulation is an urgent problem. Even though that may well be the case, people differ in their opinions about the way this problem could be tackled.
Some have started questioning whether government intervention is the right way to do so or whether there are other ways that we need to adapt to prevent a population explosion. So, it is worthwhile to discuss whether government intervention and coercive policies would prove to be a game-changer in the long run.
II. Making a law against empirical data
The population control debate has once again come into the limelight when the Uttar Pradesh government introduced its recent draft of the Population (Control, Stabilization, and Welfare) Bill, 2021 which provides for incentives and disincentives to cut down the current fertility rate of 2.7 to 2.1 by 2026. But one needs to question whether it is necessary to bring the law in the first place when the data available in the public domain suggest otherwise.
As per NFHS-4, the current fertility rate in the country is already going down, including the State of Uttar Pradesh. It is further estimated that when the findings of NFHS 5 will be put in the public domain then the Uttar Pradesh fertility rate will continue to improve.
The report of the technical group titled ‘Population Projections for India and States 2011-2036’, prepared by the National Commission on Population (NCP) in July 2020 had already projected that Uttar Pradesh will achieve the replacement level of Total Fertility Rate (TFR) by 2025, without any coercive policies (1).
So, it is very obvious that if the current proposed bill is made into law, then in the future it may prove to be counterproductive and may lead to demographic disaster.
This is because currently India’s fertility rate is already declining and even if it achieves the replacement rate, then for some years the population of the country will continue to grow before reaching a stage of stabilization and then a decrease owing to the phenomena called ‘population momentum’.
It means that if couples have two children, then it will automatically contribute to an increase in the population. So if we look more precisely into this, it would mean that in the future our younger generation will have to bear the burden of taking care of the older population and will simultaneously have to realize the goal of economic growth.
III. Impact on Women
The second issue vis-à-vis the Bill is related to its impact on women in particular as past experience is not praise-worthy. A study conducted by a former senior IAS officer Nirmala Buch in 2005 found out that in the states where the two-child policy was in force, there was a rise in female infanticide cases in the hope of having a son to comply with the two-child policy and unsafe abortions; men deserted or divorced their wives to run for local body elections, and families gave up children for adoption to avoid disqualification (2).
Despite the possibility of such grave implications that may be brought about by the bill, the Uttar Pradesh Population Bill fails to describe the course of legal action in such cases, where the husband may desert or divorce his wife to escape disqualification. Further, the bill also fails to clarify the status of the couples who choose to stay in live-in relations.
The Uttar Pradesh draft bill is also a classic example of how a patriarchal society works and how it takes away the choice jurisprudence out of the picture. The bill says that to avail of the incentives, either husband or wife has to go for voluntary sterilization.
This particular provision is problematic because the majority of women in India still have very little say in family planning decisions, especially in rural areas. So, in the end, it is women who are convinced by their husbands to undergo a tubectomy. Hence, even though the Bill talks about voluntary sterilization, it eventually becomes forced onto one particular sex –women.
The decision to sterilize oneself or not should be voluntary and shouldn’t be a mandatory criterion to take advantage of the government services provided in the Bill. The decision towards voluntary sterilization should emanate from oneself and should respect a person’s freedom to make reproductive decisions as was rightly held by the Supreme Court in Suchita Srivastava & Anr v. Chandigarh Administration (2009) 9 SCC 1 case.
Given the past experiences like in Devika Biswas v. UOI (2016) 10 SCC 723, the Supreme Court had already pointed out how these sterilization camps work disproportionately against women and other vulnerable groups.
Furthermore, India is also a signatory to the International Conference on Population and Development (ICPD), 1994 where it had committed to a global consensus on the importance of rights and dignity, rather than achieving numerical demographic targets or coercive policies, as the best way to realize fertility goals.
IV. Systematic discrimination against future generations
The third issue which needs to be addressed is how these incentives would discriminate against future generations on the basis of birth. Incentivizing public servants and the general public who adopt the one-child norm by giving preference to their child in the educational institutions and government jobs would not be a great idea per se. Why? Because allowing such incentives goes against the idea of merit.
Giving preference to any person based on their birth or child count would not only put the other children in a disadvantaged position but would also result in systematic discrimination. Further, it would also fall short on the test of equality clause i.e., Article 14 of the Constitution.
Creating such kind of arbitrary classification among future generations lacks intelligible differentia and reasonability. Disincentivizing future generations based on their parent’s choice of adherence or non-adherence to two-child policy norms would be discriminatory.
V. Other Issues
The Bill focuses on limiting ration card units to up to four members of the family, barring people from government-sponsored welfare schemes. It is very important to note here that every individual has the right to food and according to Article 47 of the Constitution, it is also the duty and imperative of the State to raise and improve the level of nutrition and public health in general.
According to the NITI Aayog Health Index report of 2019, Uttar Pradesh was the least performing state with an overall score of 28.61 as opposed to its previous score of 33.69 (3). In such a scenario, limiting ration cards up to four would have serious consequences on families which are living in poverty.
Further, the government cannot abdicate its responsibilities by barring persons from government-sponsored schemes just because a person has more than two children. These kinds of provisions seem to be more inhumane, irrational, and arbitrary to be included in the law.
The bill also includes that a separate lump sum amount will be paid to the below poverty line families if they adopt the one-child norm. Though it may look like a good move, what about those families whose children may die because of serious illness at a very early age?
Their hope for prosperity may become dull because the amount given by the government would not be enough for the couple to spend the rest of their lives and further due to permanent sterilization, they would not be able to bear more children.
The Bill also provides for barring people from participating in local body elections if they violate the two-child policy norm. The government may try to defend this provision by taking the shield of the judgment given by the Supreme Court in Javed v. State of Haryana AIR (2003) SC 3057, where the court held that a person may be disqualified on the ground of having two or more children. But now that judgment does not hold well in law and needs to be reviewed by the Court, because of the judgment given by the Supreme Court in K.S. Puttaswamy v. UOI (2017) 10 SCC 1.
In that case, the Supreme Court has recognized the right of bodily autonomy and a person’s personal choices including intimate choices such as those governing reproduction. Justice S.K. Kaul in his separate opinion has declared that the right to procreation was an important constituent of the privacy of the home.
The contention that it is important to control population to make our planet more sustainable and for resources to be abundant does not hold well because of the fact there is a vast difference in consumption patterns between the rich and the poor. It is the rich section of the society which consumes far more natural resources and contributes much more to greenhouse gases emissions than the poor (4).
The idea that we have limited resources will become obsolete in the near future because of the advancement and space exploration by humans. With the declining fertility in many southern states, Uttar Pradesh can be a game-changer in providing a labour force to these states and the world. It is the right time that the State of Uttar Pradesh has to recognize its demographic dividends.
It is also time for us to realize now that coercive population policies would not work but rather positive government interventions like providing dedicated programs for health, education, and access to contraceptive measures would prove to be beneficial in the long run. Abdicating responsibilities and putting blame on the people is not the way forward.
- Report of the Technical Group on Population Projections, July 2020, “Population Projections for India and States 2011-2036”, page 193, Available Here.
- Poonam Muttreja, “India’s best Population Strategy”, Scroll, 16 September 2019, Available Here.
- Aastha Ahuja, “Swasth Report of Uttar Pradesh”, NDTV, 21 November 2019, Available Here.
- David Roberts, “Why rich people use so much energy”, Vox, 20 March 2020, Available Here.
- Draft Population Bill, Available Here.